Midshipman opts for trial by judge in assault case

Pamela Wood, The Baltimore Sun

A Naval Academy midshipman accused of sexually assaulting a classmate at an off-campus party asked a judge Friday to decide his fate instead of a jury in the trial that's being watched at the Annapolis institution and across the country as a bellwether of how the military handles such cases.

Midshipman Joshua Tate is charged with aggravated sexual assault and making false statements to investigators in a court-martial beginningMonday at the Washington Navy Yard.

Tate was to face a jury made up of Navy and Marine Corps officers stationed in the Washington region but had a "change of heart," according to his civilian attorney, Jason Ehrenberg. At Friday's jury selection, Ehrenberg said Tate wanted a judge to hear the case because he felt a judge would have a better understanding of legal nuances than jurors.

The case against Tate dates back to a party in April 2012 at an Anne Arundel County house dubbed the "Black Pineapple" by midshipmen. The house had been rented in violation of academy regulations.

The alleged victim has testified she spent the hours before the party drinking and has only spotty memories of the night. She passed out on a couch and caught a ride to the academy in the morning, but later heard through rumors and social media that she may have had sexual encounters she didn't remember.

The case comes amid a rise in reports of sexual assault in the military and a drumbeat of high-profile cases, including that of an Army brigadier general accused of sexually assaulting a female captain and an Army prosecutor facing allegations that he made advances toward a female Army lawyer.

"Almost every day, it seems like some other 'you could not make it up' scandal is breaking," said Brian Purchia, spokesman for advocacy group Protect Our Defenders, which is working to reduce sexual assault in the military. "It reads like an article from The Onion, but it's the truth."

Purchia said the Naval Academy case — with the elements of an off-campus party house, sex and heavy drinking — comes up "time and time again" as an example of why action is needed.

Greg Jacob, a former Marine who is policy director for the Service Women's Action Network, said sexual assault needs to be stamped out at academies if there's any hope of changing the military culture. He noted the majority of top military leaders hail from the academies.

"It's a really pervasive issue," he said. "It's happening in all the branches of the services. It's happening in the ranks. It's happening at all the academies."

In December, President Barack Obama ordered a one-year review of the military's efforts to prevent sexual assaults.

At the Naval Academy's commissioning ceremony last May, Obama told midshipmen, "Those who commit a sexual assault are not only committing a crime, they threaten the trust and discipline that make our military strong."

In the Naval Academy case, the investigation progressed in fits and starts, including a period when the alleged victim didn't cooperate with investigators, prompting the Navy to close the case in November 2012.

"I was scared," she said during a hearing last August. "I didn't want anyone else to get in trouble. Seeing what people went through before, I think I just didn't have the courage. I didn't want my mom to find out."

In January 2013, she decided to cooperate, and the case was reopened. She also gave interviews to national media outlets, including TV networks and The New York Times. The Baltimore Sun does not name victims of alleged sexual assaults.

In June 2013, Naval Academy Superintendent Vice Adm. Michael Miller ordered a preliminary hearing involving three midshipmen: Tate, Tra'ves Bush and Eric Graham, all football players who had attended the party.

Miller later chose not to prosecute Bush. He was punished administratively for making false statements, then allowed to graduate. He's now a Navy ensign.

The case against Graham was dropped after pretrial rulings when a judge determined some of his statements couldn't be used in court. Graham is withdrawing from the academy and is scheduled to be a witness against Tate.

The case against Tate will center around what happened in a car outside the party house. The alleged victim has said she remembers only being in the car with Tate. Graham, who also was in the car with the victim at one point, has said she had been drinking, but was talking and moving normally.

Tate's civilian attorney, Ehrenberg, said this week he's confident his client will be exonerated. He said prosecutors can't prove beyond a reasonable doubt that a sexual assault occurred.

"I just don't think they can meet that burden," he said.

Prosecutors have not commented on the case, and lawyers for the alleged victim won't talk about the case publicly. The Naval Academy's chief spokesman, Cmdr. John Schofield, said the academy is "standing by for the legal process to run its course."

The alleged victim is expected to testify, as are other midshipmen who were at the party.

Both sides also are expected to call experts to testify whether the woman met the definition of "substantial incapacitation," meaning she was unable to consent to having a sexual encounter.

Ehrenberg said his client chose to have the judge, Marine Corps Col. Daniel Daugherty, hear the case because he felt a judge would have a better understanding of the legal definition of substantial incapacitation than jurors.

In reviewing questions prosecutors planned to ask potential jurors, Ehrenberg said, he was concerned that their strategy was to pick jurors who might be confused into thinking that any sex with a drunken person constituted a sexual assault. "They can't confuse the judge on the law," he said.

Purchia, of Protect Our Defenders, called the alleged victim "an incredible fighter" for sticking with the case, even through more than 20 hours of detailed personal testimony during last summer's preliminary hearing.

Ehrenberg said the investigation, proceedings and national attention have taken a toll on Tate as well.

"He's clearly been somewhat isolated by this," Ehrenberg said of the junior from Nashville, Tenn. "He's been accused on national television of being a rapist."

The case has advanced amid other alleged military sexual assaults that have caught national attention.

Army Brig. Gen. Jeffrey Sinclair, former deputy commander of the 82nd Airborne Division, has been accused of sexually assaulting a female captain. On Monday, a judge in that case halted the court-martial at Fort Bragg, N.C., after emails surfaced indicating possible unlawful command influence in the case.

This month, Army sexual assault prosecutor Lt. Col. Joseph "Jay" Morse was suspended after allegations arose that he made unwanted sexual advances toward a female Army lawyer at a conference on sexual assault in 2011.

A Pentagon report estimates as many as 26,000 service members were sexually assaulted in 2012, up from 19,000 the year before. Another Pentagon report issued in January documented 15 reported cases of sexual assault at the Naval Academy the previous academic year, up from 13 the year before. Pentagon officials said they believe many assaults go unreported.

The issue has caught the attention of Congress. Sen. Barbara A. Mikulski wrote last year to Secretary of Defense Chuck Hagel that she was "deeply troubled by the lackluster response from the superintendents to increasing rates of sexual assault within their academies."

This month, a bill that would have taken prosecutorial decisions out of the hands of military commanders failed in the Senate.